SHASHI SHARMA Vs. H.P.NAGAR VIKAS PRADHIKARAN

JUDGEMENT

(1.) The above writ petitions may be dealt with together by this common order since the learned Counsel appearing for the petitioners as well as for the respondent have made their submissions in common and except the variations in facts relating to the identity of the property, the amount actually to be paid by the individual petitioner in respect of the respective allotments made in their favour, the liabilities as also the mutual rights of the parties are governed by common set of facts and circumstances flowing from the documents executed or mutual correspondence exchanged between them, which in our view form the basis of the contract between the parties. As a matter of fact, the learned Counsel for the petitioner in CWP No. 1314/95 made the leading arguments on behalf of the petitioner and the factual details have been highlighted more in respect of the case in CWP No. 1314/95. Even with reference to such factual details, the respective petitioners have also even before filing these writ petitions entered into Hire Purchase Agreement with the respondent -authority and despite the factum of executing such agreement, they have filed the present writ petitions.

(2.) Shimla Development Authority was established and constituted for Shimla Planning Area under the Town and Country Planning Act in the year 1983. The said authority in the year 1986 has launched housing scheme named and styled as 4th Partially Self Financing Scheme for employees for residential complex to be constructed below Bishop Cotton School in Kasumpti Zone of New Shimla. The respondent -authority vide publicity in various newspapers and by other modes invited the applications for purchase en 99 years lease hold basis, houses and developed plots and the last date for receipt of applications was extended to 31.7.1986. The petitioners have placed on record copy of the notification marked Annexure P -l. Shimla Development Authority lateron was merged and re -named as H.P. Vikas Pradhikaran -respondent herein. The petitioner in CWP No. 1314/95 and his wife Smt. Kiran Sharma who are serving in Nationalized Bank appear to have enrolled themselves for getting Type -B category of plot in the year 1986. Similarly other petitioners appear to have enrolled themselves for getting plots. The petitioners have alleged that the possession of the plots was to be delivered by the respondent -authority within one year from the date of closer of the scheme i.e. on or before 1.10.1987. The petitioners in CWP No. 1314/95 deposited a sum of Rs. 36,000/ - on or before December 1987 for Type -B category of plot. The cost of the plot was tentatively fixed by respondent -authority at Rs. 60,000/ - including the earnest money of Rs. 13,800/ - and the first instalment of Rs. 4,200/ - was to be made before 9.12.1986. In letter dated 17.11.1986 marked Annexure P -3 Chief Executive Officer of the respondent -authority requested the petitioners to make the first instalment on or before the said date and thereafter 12 monthly instalments of Rs. 1,500/ - were to be made before 9th of each month from January 1987 to December 1987 and the balance amount may be payable with interest in six years starting from January 1988. The default clause has been incorporated in the said letter intimating the petitioners that if the payment of instalments is defaulted interest @ 18 per cent per annum shall be charged on the payment due. It is also stated in the said letter that as soon as the plots are ready for giving possession, the petitioners will be intimated and specific plots shall be allotted by draw of lots and when any person desiring to get any particular block and/or any particular plot he may give his preference for a particular block and/or any particular plot on payment of extra cost which in the case of particular block at the rate of 2% of the total cost and for particular plot at the rate of 6% of the total cost. The petitioners alleged that they were not handed -over the possession of the plots within the time fixed by the respondent -authority and after the expiry of about four years, the petitioners received letter Annexure P -4 from the respondent -authority whereunder all of a sudden cost price of plot from initially Rs. 60,000/ - was enhanced to Rs. 1,13,914/ - and the petitioners had no option but to accept the increase of the price of the plot and took the delivery of the possession of the plots on 20.3.1992. On 6.5.1995, the respondent -authority issued letter to the petitioners in CWP No. 1314/95 marked Annexure P -6 whereunder they were informed that a sum of Rs. 1,13,914/ - only has been received from them by the respondent -authority as tentative cost of plot No. 27 Type -B category and now nothing was due from them towards the tentative cost of the above mentioned plot as demanded by the respondent -authority. The petitioners have alleged that they were taken by surprise that the enhanced amount of price of Rs. 1,13,914/ - was demanded as tentative cost of plot and whereas they were under the impression that the said price was total consideration of the plot which was allotted to the petitioners. The petitioners alleged to have made representation (Annexure P -7) to the respondent -authority challenging to the increase of the price of the plots based upon tentative price and also requested the respondent -authority to release the interest @ 18% on the deposit made by them till the date of possession of the plots were delivered to them. The petitioners have placed on record a copy of the order marked Annexure P -9 passed by Himachal Pradesh Consumer Disputes Redressal Commission, Shimla dated 7.8.1992 wherein interest @ 18% on the deposit made by an allottee was awarded to her for delayed period of possession was awarded by the Commission and on the basis of that order, the petitioners made another representation claiming the interest in the same and similar situation. The petitioners alleged that the respondent -authority vide Annexure P -10 directed them to deposit an additional amount of Rs. 42,811/ - and this amount has been demanded on the ground that the learned District Judge, Shimla had enhanced the award of land acquired by the respondent -authority in reference case(s) on 30.4.1993 and that the petitioners were directed to deposit the enhanced amount within one month in one go. All the petitioners in these petitions being aggrieved have assailed the action of the respondent -authority on the ground that the respondent -authority has not delivered the possession of the plots within the stipulated time and the petitioners got the possession after four years and for the delayed possession they should be paid interest at the rate of 18% per annum on the sum deposited by them from the date till delivery of possession of the plots. The petitioners also alleged that the respondent -authority was not competent and authorized to enhance the initial price and thereafter additional demand of Rs. 42,811/ - based upon the enhancement of the amount of compensation awarded by the Court. The petitioners have alleged that whole action of the respondent -authority is arbitrary, illegal inasmuch as unjust and improper and that they have claimed payment of interest @ 18% per annum on sum of Rs. 36,000/ - deposited by them before the delivery of plot or to adjust the said amount against the enhanced amount demanded by the respondent -authority In their reply, the respondent -authority raised two preliminary objections, namely, that the petitions suffer from delay and laches and that the dispute, if any, involved in the present writ petitions would lie within the realm of contract between the parties and the present writ petitions are, therefore, not maintainable.

(3.) On merits, the respondent -authority has denied having made any specific demand or promise with regard to the handing over of the possession of the plot within one year as alleged by the petitioners. The respondent stated that the possession of the plots given to the petitioners within a reasonable time and the petitioner in CWP No. 1314/95 was delivered possession on 29.3.1991 and not on 20.3.1992 as given by him in his petition. It is stated that all the petitioners had agreed to the terms and conditions contained in the allotment letter as well as sale deeds executed by them and the petitioners were specifically told by the communication that the initial as well as increased amount of price of plots were tentative and on such representation, the petitioners accepted the terms and conditions and got themselves registered. They have entered into agreement with the respondent -authority and took the possession of the plots allotted to them and thereafter started paying the instalments due to them. The order of the Himachal Pradesh Consumer Disputes Redressal Commission relied upon by the petitioners in their petitions is said to be not applicable in the facts and circumstances of the present case as the said order is personam and not a judgment in rem. The respondent -authority stated that the Himachal Pradesh Consumer Dispute Redressal Commission awarded interest in that case for delayed delivery of the possession of the plots to the allottees but in the present case the delivery of the plots was handed over to the petitioners -allottees within a reasonable time. Further, it is alleged that the petitioners were asked to deposit a sum of Rs. 42,811/ -, the land compensation awarded by the District Judge, Shimla and the such amount has been demanded in accordance with the terms and conditions of the scheme and the lease deeds under which the petitioners have agreed to make the deposit of enhanced amount of price if the amount of compensation for the land acquired by the respondent -authority came to be enhanced by the Civil Court. The respondent -authority has denied all other allegations made by the petitioners like discrimination, arbitrary, illegal, unjust and improper.